September 2021 Oregon HR Legal Updates

Oregon’s Vaccination Rule for Healthcare Workers is Updated

Update Applicable to:

Employers with healthcare providers and staff in Oregon.

What happened?

On August 25, 2021, the Oregon Health Authority (OHA) changed the temporary rule for healthcare worker vaccinations.

What are the details?

The rule changes, effective immediately and through January 31, 2022, remove the periodic testing requirement entirely and now require full vaccination against COVID-19 for any healthcare workers in healthcare settings, or for healthcare workers to provide their employer with documentation of a medical or religious exception on or before October 18, 2021.

By October 18, 2021, employers of healthcare providers and healthcare staff must have documentation of their employees’ full vaccination. Employers must keep the documentation of vaccination or medical/religious exceptions for at least two years and provide them to OHA upon request. After October 18, healthcare providers and healthcare staff who are not fully compliant will not be able to “work, learn, study, assist, observe, or volunteer in a healthcare setting.” Employers may also not employ, contract with, or accept the volunteer services of healthcare providers or healthcare staff persons who are not fully compliant.

The rule change can be read here.

An article on the rule change can be read here.

What do employers need to do?

Employers should review the changes brought to the vaccination rule by the OHA and review their vaccination plans and policies to make any applicable adjustments to stay in compliance.

August 2021 Oregon HR Legal Updates

Temporary Rule Requiring Healthcare Worker Vaccinations in Oregon

Update Applicable to:
Employers with healthcare providers and staff in Oregon.

What happened?
On August 5, 2021, the Oregon Health Authority (OHA) enacted a temporary rule for COVID-19 prevention measures.

What are the details?
Effective immediately and through January 31, 2022, the temporary rule requires healthcare personnel and healthcare staff who work in healthcare settings to either be vaccinated against COVID-19 or be tested for COVID-19 on a weekly basis at a minimum. The standards set by the rule must be met and implemented by September 30, 2021.

The workers covered in the rule are individuals —either paid or unpaid—who work, learn, assist, observe, or volunteer in a “healthcare setting” and who are “providing direct patient or resident care” or are potentially exposed to patients, residents, or infectious materials. This includes traditional healthcare providers (e.g., physicians and nurses), but it also includes “unlicensed caregivers” and employees working in clerical, security, billing, and administrative functions, among others, in healthcare settings.

The healthcare settings covered by the rule include any place where physical or behavioral health care is delivered. Included are nursing facilities, assisted living facilities, adult foster homes, residential facilities, residential behavioral health facilities, pharmacies, hospice, vehicles or temporary sites where health care is delivered (for example, mobile clinics, ambulances), and outpatient facilities (e.g dialysis centers, health care provider offices, behavioral health care offices, urgent care centers, counseling offices, as well as chiropractic or acupuncture clinics.

The rule also requires Oregon employers of healthcare providers or healthcare staff, contractors, or responsible parties have and follow a policy for

  • Requesting and obtaining proof of vaccination from every healthcare provider and healthcare staff person.
  • Requiring COVID-19 testing “on at least a weekly basis” for healthcare providers and healthcare staff persons who are unvaccinated or whose vaccination status is not known.
  • Maintaining documentation of weekly COVID-19 test results for any healthcare provider or healthcare staff person who is unvaccinated or has an unknown vaccination status.

The rule can be read here.

An article on the rule can be read here.

What do employers need to do?
Covered employers should review the temporary rule and update their applicable policies to stay compliant with the COVID-19 guidelines set in place by the rule.

July 2021 Oregon HR Legal Updates

Vaccine Incentives and Hiring Bonuses Temporarily Allowed in Oregon 

Update Applicable to:
All employers in Oregon. 

What happened?
On July 8, 2021, Oregon legislature temporarily amended Oregon’s Equal Pay Act (EPA). 

What are the details?
Oregon’s Equal Pay Act has been temporarily amended to allow employers to encourage COVID-19 vaccinations and to attract new employees as the state begins re-opening from COVID-19. Under the revised statute, when evaluating whether employees who perform work of comparable character are paid equitably, a comparison of employee compensation may exclude vaccine incentives. Similarly, hiring and retention bonuses are excluded from the calculation.

The amendment notes that vaccine incentives are excluded for pay comparison purposes on any claims filed after April 29, 2021. It also excludes hiring and retention bonuses for pay comparison purposes on claims and complaints filed after May 25, 2021. Both amendments are due to expire March 1, 2022. 

The revised statute can be read here

An article on the update can be read here. 

What do employers need to do?
Employers should read the information above and the revised statute to properly process any claims on pay comparison filed after April 29, 2021 and hiring or retention bonuses filed after May 25, 2021. 

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Oregon’s Equal Pay Poster Receives Update 

Update Applicable to:
All employers in Oregon. 

What happened?
On June 21, 2021, the Oregon Bureau of Labor updated their Equal Pay notice. 

What are the details?
Oregon updated its Equal Pay notice to reflect that it is unlawful for an employer to pay an employee less than someone else because of their gender, race, veteran status, disability, age, color, religion, national origin, marital status, sexual orientation, or pay history. 

The updated poster can be read here.

What do employers need to do?
Employers in Oregon should update their Equal Pay poster to stay in compliance. The updated poster can be read here

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Oregon Updates Paid Sick Time Notice 

Update Applicable to:
All employers in Oregon. 

What happened?
On June 21, 2021, the Oregon Bureau of Labor updated their Paid Sick Time notice. 

What are the details?
Oregon updated its Paid Sick Time notice poster. The updated notice clarifies that paid sick time covers bereavement, parental leave, and leave to care for a child whose school or place of care is closed for a public health emergency. The poster revision date is June 21, 2021. 

The updated poster can be read here. 

What do employers need to do?
Employers in Oregon should update their Paid Sick Time poster to stay in compliance. The updated poster can be read here

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Temporary Heat Standard Issued by Oregon OSHA 

 Update Applicable to:
All employers in Oregon.  

What happened?
On July 8, 2021, Oregon’s OSHA established emergency heat safety requirements.   

What are the details?
Effective immediately, Oregon’s OSHA adopted workplace heat safety requirements that apply when temperatures in a work area reach or exceed 80 degrees Fahrenheit. Additional rules will also apply when the temperature breaches 90 degrees Fahrenheit. The state will now apply to incidental exposure (less than 15 minutes of exposed work activity in any 60-minute period), to transportation of employees inside vehicles when they are not otherwise performing work, or where other standards apply (e.g., where heat is generated from a work process). These emergency rules will stay in effect until a permanent rule is completed.  

By August 1, 2021, employers must provide training to all employees who can reasonably be anticipated to be exposed to temperatures at or above 80 degrees Fahrenheit in the work area. The training must be in a language readily understood, and include the following:  

  • The environmental and personal risk factors for heat illness, as well as the added burden of heat load on the body caused by exertion, clothing, and personal protective equipment. 
  • The procedures for complying with the requirements of this standard, including the employer’s responsibility to provide water, provide daily heat index information, shade, cool-down rests, and access to first aid as well as the employees’ right to exercise their rights under this standard without fear of retaliation. 
  • The concept, importance, and methods of adapting to working in a hot environment. 
  • The importance of employees immediately reporting symptoms or signs of heat illness in themselves, or in co-workers. 
  • The effects of non-job factors (medications, alcohol, obesity, etc.) on tolerance to workplace heat stress. 
  • The different types of heat-related illness, and the common signs and symptoms of heat-related illness.  

Employees exposed to a work area that is at or above 80 degrees Fahrenheit must be provided a shade area and water that meets the below specifications:  

  • Shade Requirements 
  • Be provided by any natural or artificial means that does not expose employees to unsafe or unhealthy conditions and that does not deter or discourage access or use. 
  • Either be open to the air or provide mechanical ventilation for cooling. 
  • At least accommodate the number of employees on recovery or rest periods, so that they can sit in in the shade. 
  • Be located as close as practical to the areas where employees are working. 
  • Shade present during meal periods must be large enough to accommodate the number of employees on the meal period that remain onsite. 
  • Water Requirements 
  • Be readily accessible to employees at all times and at no cost. 
  • Enable each employee to consume 32 ounces per hour. 
  • Be cool (66-77 degrees Fahrenheit) or cold (35-65 degrees Fahrenheit). 
  • Drinking water packaged as a consumer product and electrolyte-replenishing drinks that do not contain caffeine are acceptable substitutes but should not completely replace the required water. 
  • Employers must also ensure that employees have ample opportunity to drink water.  

When the temperature level rises to above 90 degrees Fahrenheit, the below rules apply in addition to the previous rules: 

  • Ensure effective communication between an employee and a supervisor is maintained so that an employee can report concerns.  
  • Ensure that employees are observed for alertness and signs and symptoms of heat illness and monitored to determine whether medical attention is necessary. 
  • Provide a cool-down rest period in the shade of 10 minutes for every two hours of work. These preventative cool-down rest periods may be provided concurrently with any other meal or rest period required by policy, rule, or law. 
  • Develop and implement an emergency medical plan and practices to gradually adapt employees to working in the heat. 

An article on the emergency rules can be read here.  

Documents, resources, and further details on the rules can be read here.  

What do employers need to do?
Employers should review the rules and their workplace policies on training and outdoor heat exposure to stay in compliance with the new rules. 

 

 

June 2021 Oregon HR Legal Updates

Oregon Updates Family Leave Act

Update Applicable to:
All employers

What happened?
On June 8, 2021, Governor Brown signed House Bill 2474 into law.

What are the details?
HB 2474 amends the Oregon Family Leave Act (OFLA) to update and expand the law’s eligibility and leave provisions which will take effect on January 1, 2022. The amendments give eligibility to take leave to employees reemployed after a separation or returning after a temporary work cessation within 180 days, expand eligibility and leave entitlements during public health emergencies, and remove gendered language.

Employees who are reemployed after a separation from employment or returning from work after a temporary cessation of scheduled work hours, within 180 days, are now eligible for leave in the following circumstances.

  • Employees reemployed or returning within 180 days who were eligible for OFLA leave at the time of separation from employment or the beginning of their temporary cessation of work will be eligible to take OFLA leave immediately upon reemployment or return.
  • Employees reemployed or returning within 180 days who were not yet eligible for OFLA leave at the time of separation from employment or the beginning of their temporary cessation of work will receive credit for time worked for the employer prior to the break in service for the purpose of establishing eligibility.

Employees returning after a period greater than 180 days must still reestablish eligibility for OFLA anew and will not receive credit for a prior service. While OFLA leave taken by employees who have been reemployed or have returned to work within a one-year period will continue to count toward the employee’s OFLA leave entitlement.

The eligibility of OFLA leave use has been expanded for any qualifying reason during a period of public health emergency to all employees of a covered employer if the employer has employed them for at least 30 days immediately before the leave begins and they worked an average of at least 25 hours per week during the 30 days immediately preceding the leave.

The bill also expands the list of qualifying OFLA reasons to include leave to care for a child of the employee “who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency.” As well as removing gendered language related to pregnancy and childbirth-related leave which allows any eligible employee may take OFLA leave for an illness, injury, or condition related to the employee’s own pregnancy or childbirth, without regard to gender.

The bill can be read here.

An article on the bill can be found here.

What do employers need to do?
Employers should read the above information and update their leave policies as needed.

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Oregon Passes CROWN Act

Update Applicable to:
All employers in Oregon.

What happened?
On June 11, 2021, Oregon Governor Brown signed into law House Bill 2935, also known as the CROWN Act (Creating a Respectful and Open World for Natural Hair),

What are the details?
The act amends the Oregon Equality Act, which prohibits discrimination in employment, by including a new definition of “race” that “includes physical characteristics that are historically associated with race, including but not limited to natural hair, hair texture, hair type, and protective hairstyles.” It further defines “protective hairstyles” to include any “hairstyle, hair color or manner of wearing hair that includes, but is not limited to, braids, regardless of whether the braids are created with extensions or styled with adornments, locks and twists.” Additionally, the act includes provisions regarding employer dress codes. A dress code will now be prohibited if they have a disproportionate adverse impact on members of a protected class.

The bill can be read here.

What do employers need to do?
Employers should update their policies to reflect the new requirements.

 

April 2021 Oregon HR Legal Updates

Oregon Starts COVID-19 Wage Supplement Program

Update Applicable to:
All Oregon Employees.

What happened?
As part of the $200 million of Coronavirus Aid, Relief, and Economic Security Act (CARES) Act funds authorized on July 14, 2020, Oregon has recently started its Quarantine Time Loss Program to help employees working for smaller businesses.

What are the details?
Employees that are required to quarantine as a result of exposure to, or exhibiting symptoms of COVID-19, are eligible to apply for payments from the State of Oregon. The state offers a program in which employees may apply for up to $120 a day to cover up to 10 working days, for employees who do not qualify for any other form of paid leave related to COVID-19. To be fully eligible employees must fit the following criteria:

  • Work in Oregon and required to file an Oregon personal income tax return.
  • Directed to quarantine by a local or tribal public health authority or health-care provider because of exposure to someone infected or have COVID-19-related symptoms and are seeking a medical diagnosis.
  • Not able to work (including telework) because you need to quarantine or isolate.
  • Do not expect to earn more than $60,000 individually or $120,000 jointly in 2020.
  • Your employer does not provide COVID-19-related paid sick leave or you have exhausted your available COVID-19-related paid sick leave.
  • Are not applying for unemployment insurance benefits for the time off due to quarantine or isolation.
  • Are not applying for workers’ compensation benefits for the time off due to quarantine or isolation or experiencing COVID-19 symptoms.
  • Are not seeking or using benefits from similar COVID-19 quarantine relief programs in Oregon or another state.
  • Are not applying for or receiving other forms of paid leave from your employer during your quarantine or isolation, such as banked sick leave or vacation leave.
  • Are not laid off or furloughed by your employer.
  • Must have notified your employer that you need to quarantine or isolate.
  • Can claim only one quarantine period.
  • You are not self-employed.
  • You are not part of the gig economy (Lyft, Uber, DoorDash, Grubhub, Instacart, etc.)
  • You are not being paid off the record—this means your employer is not reporting your income to the state and often employers who pay off the record pay in cash.

Employees who wish to learn more or want to apply for the program can do so by following this link.

What do employers need to do?
Employers do not need to take any action. However, this is a great resource for employees while it lasts, and it may be beneficial for employers to let employees know of the program.

November 2020 Oregon HR Legal Updates

Oregon Voters Approve Psilocybin Usage and Minimize Penalties for Drug Possession

What happened?
Voters in Oregon have passed Measures 109 and 110.

What are the details?
Measure 109:
The Oregon Health Authority (OHA) will be responsible for establishing the program and creating regulations. OHA has a two-year period to develop the program. An Oregon Psilocybin Advisory Board (OPAB) will advise the OHA. Residents will be allowed to purchase, possess, and consume psilocybin at a psilocybin service center and under the supervision of a psilocybin service facilitator after undergoing a preparation session. Under Measure 109, the OHA determines who is eligible to be licensed as a facilitator, determine what qualifications, education, training, and exams are needed, and create a code of professional conduct for facilitators. OHA would set psilocybin dosage standards and labeling and packaging rules.

Currently Measure 109 does not address how this will impact workplace practices. Guidance is expected over the next two years before the measure goes fully into effect.

Measure 110:
While Measure 110 severely reduces the penalties for individuals found to be in possession of small amounts of certain drugs that were previously illegal, it also mandates establishment/funding of “addiction recovery centers” (centers) within each existing coordinated care organization service area by October 1, 2021. Centers provide drug users with triage, health assessments, treatment, and recovery services. To fund centers, the measure dedicates all marijuana tax revenue above $11,250,000 quarterly, legislative appropriations, and any savings from reductions in arrests, incarceration, and supervision resulting from the measure.

Interestingly, Measure 110 has created a rebuttable presumption for those who require licenses to work in the state of Oregon. The measure amends ORS 670.280 to create a “rebuttable presumption” that an applicant’s or licensee’s existing or prior conviction of a Class E violation “does not” render the person unfit to obtain or hold a license. Measure 110 also amends ORS 670.280 to create a “rebuttable presumption” that such a conviction also “is not related to the fitness and ability” of the applicant or licensee to engage in the activity for which the license is required.

These two measures do not interfere with an employer’s right to maintain drug free workplaces.

An article going over the changes of these two measure can be found here.

Measure 109 can be read here.

Measure 110 can be read here.

What do employers need to do?
Oregon employers should be aware of these changes and know that it does not impact their current ability to regulate controlled substances in the workplace.

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Oregon OSHA Issues COVID-19 Regulations

What happened?

Oregon OSHA’s Infectious Disease Rulemaking Advisory Committee has issued significant restrictions on multiple industries and requirements for employers with differences between employers of varying sizes.

What are the details?
There are four requirements that all employers, regardless of industry, will need to adhere to. The four requirements are:

  1. Exposure risk assessment
  2. Infection control plan
  3. Training
  4. COVID-19 infection notification process

The following page numbers will be referring to the pages of the Oregon OSHA document that was released to outline all of these rules, found here.

Exposure Risk Assessment:
Pg. 9. “(g) Exposure risk assessment. No later than December 7, 2020, all employers must conduct a COVID-19 exposure risk assessment, without regard to the use of personal protective equipment, masks, face coverings, or face shields. If an employer has multiple facilities that are substantially similar, its assessment may be developed by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the assessment.”

Note: Oregon OSHA has provided a template for employers to fill out that will satisfy the requirement. An additional requirement for the client to keep in mind:

“Each employer with more than ten employees statewide (including temporary and part-time workers) or that is covered by (1)(c) of this rule (workplaces at exceptional risk) must record their COVID-19 exposure risk assessment in writing by documenting the following information:

(i) The name(s), job title(s), and contact information of the person(s)

who performed the exposure risk assessment;

(ii) The date the exposure risk assessment was completed;

(iii) The employee job classifications that were evaluated; and

(iv) A summary of the employer’s answers to each of the applicable

exposure risk assessment questions in this subsection.”

Infection Control Plan:
Pg. 11 “(h) Infection control plan. No later than December 7, 2020, all employers must establish and implement an infection control plan based on the risks identified in subsection (3)(g) that implements the controls identified in (3)(g)(C)(xiii) including, but not limited to, ventilation, staggered shifts, redesigning the workplace to accommodate physical distancing, reducing use of shared surfaces and tools, limiting the number of employees and other individuals in work areas, personal protective equipment, etc. If an employer has multiple facilities that are substantially similar, its infection control plan may be developed by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the plan. Employers may also rely upon materials developed by associations, licensing agencies, and franchisors to assist with compliance and provided that mechanisms for appropriate employee feedback and involvement are provided.”

Employers with 10 employees statewide will need to keep the control plan in writing and ensure that a copy is accessible to employees at their workplace.

The actual requirements of the Infection Control Plan are as follows:

“(i) A list of all job assignments or worker tasks requiring the use of personal protective equipment (including respirators) necessary to minimize employee exposure to COVID-19;

(ii) The procedures the employer will use to ensure that there is an adequate supply of masks, face coverings, or face shields and personal protective equipment (including respirators) necessary to minimize employee exposure to COVID-19;

(iii) A list and description of the specific hazard control measures that the employer installed, implemented, or developed to minimize employee exposure to COVID-19;

(iv) A description of the employer’s COVID-19 mask, face covering, and face shield requirements at the workplace, and the method of informing individuals entering the workplace where such source control is required;

(v) The procedures the employer will use to communicate with its employees and other employers in multi-employer worksites regarding an employee’s exposure to an individual known or suspected to be infected with COVID-19 to whom other workers may have been exposed. This includes the communication to individuals identified through COVID-19 contact tracing and general communication to the workplace at large; and

(vi) The procedures the employer will use to provide its workers with the initial employee information and training required by this rule.”

Note: While it is not currently available, Oregon OSHA has stated that it will make samples of Infection Control Plans available to employers to assist them in completing the task.

Training:

Pg. 12.  “Employee information and training. No later than December 21, 2020, employers must provide workers with information and training regarding COVID-19. This information and training can be provided remotely or using computer-based models but must be provided in a manner and language understood by the affected workers. Employers must ensure that the training provides an opportunity for feedback from employees about the topics covered in the training, which must include at least the following elements:

(A) Physical distancing requirements as they apply to the employee’s workplace and job function(s);

(B) Mask, face covering, or face shield requirements as they apply to the employee’s workplace and job function(s);

(C) COVID-19 sanitation requirements as they apply to the employee’s workplace and job function(s);

(D) COVID-19 signs and symptom reporting procedures that apply to the employee’s workplace;

(E) COVID-19 infection notification process as required by this rule;

(F) Medical removal as required by this rule;

(G) The characteristics and methods of transmission of the SARS-CoV-2 virus

(H) The symptoms of the COVID-19 disease;

(I) The ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the SARS-CoV-2 virus; and

(J) Safe and healthy work practices and control measures, including but not limited to, physical distancing, sanitation and disinfection practices.”

Note: Oregon OSHA will be providing training materials that can be used to complete the training requirements. Additionally, if the client has already provided training covering the above topics, they will not be required to administer it again, but they will need to provide training on any of the topics not covered by the previous training.

COVID-19 Infection Notification Process:
Employers will need to set up a process to notify employees that have had a work-related contract with an individual who has tested positive for COVID-19, as well as to notify affected employees that an individual who was present in the facility has confirmed COVID-19. The requirement has two parts:

(A) A mechanism for notifying both exposed and affected employees within 24 hours of the employer being made aware that an individual with COVID-19 was present in the workplace while infectious or otherwise may have had work-related contact with its employee(s) while infectious; and

(B) This notification process must be established and implemented in accordance with all applicable federal and Oregon laws and regulations.

Note: Oregon OSHA has issued a model notice policy that employers may use. 

In addition to the above requirements, Oregon OSHA had issued additional requirements for the above requirements if the employer works with any of the following activities:

“(A) Direct patient care;

(B) Environmental decontamination services in a healthcare setting;

(C) Aerosol-generating healthcare or postmortem procedures;

(D) Direct client service in residential care or assisted living facilities;

(E) Emergency first responder activities;

(F) Personal care activities that involve very close contact with an individual, such as toileting or bathing; or

(G) Handling, packaging, cleaning, processing, or transporting human remains or human tissue specimens or laboratory cultures collected from an individual known or suspected to be infected with COVID-19”

Oregon OSHA also included industry specific regulations that can be found on the document linked above:

  1. Restaurants, Bars, Brewpubs, and Public Tasting Rooms at Breweries, Wineries, and Distilleries
  2. Retail Stores
  3. Outdoor/Indoor Markets
  4. Personal Services Providers
  5. Construction Operations
  6. Indoor and Outdoor Entertainment Facilities
  7. Outdoor Recreation Organizations
  8. Transit Agencies
  9. Collegiate, Semi-Professional, and Minor League Sports
  10. Professional and PAC-12 Sports
  11. Licensed Swimming Pools, Licensed Spa Pools, and Sports Courts Mandatory Workplace Guidance
  12. Fitness-Related Organizations
  13. K-12 Educational Institutions (Public or Private)
  14. Early Education Providers
  15. Institutions of Higher Education (Public or Private)
  16. Veterinary Clinics
  17. Fire Service and EMS
  18. Law Enforcement
  19. Jails and Custodial Institutions

The example Risk Exposure Assessment can be found here, at the bottom of the webpage under “Documents.”

The model notice policy can be found here.

Additional information, forms, and model notices will be posted here.

What do employers need to do?
All employers with employees in Oregon should review the above information and begin the process of completing the requirements, as some may take time and planning to complete.

September 2020 Oregon HR Legal Updates

New Oregon Act Restrict Signed Agreements and Strengthens Anti-Discrimination Requirements

What happened?
Oregon has passed new legislation, the Workplace Fairness Act (WFA), that creates new restrictions on signed agreements employees can be required to sign and creates new requirements for employer non-discrimination and non-harassment policies.

What are the details?
The WFA creates two sets of rules that will be applicable to employers in the state of Oregon. The first is a rule prohibiting the use of specific signed agreements.  The second is a new set of expectations regarding employer’s anti-discrimination and anti-harassment policies.  

Signed Agreements

The WFA will remove the ability of employers to require an employee to enter into any agreement with a nondisclosure or nondisparagement provision if it has the purpose or effect of preventing the employee from disclosing or discussing conduct constituting discrimination, harassment, or sexual assault.

However, should an employee who claims to be aggrieved by discrimination, harassment, or sexual assault request to enter into a settlement, separation, or severance agreement that contains a nondisclosure, nondisparagement, or no-rehire provision, it is permissible under the WFA. The employer is required to provide at least seven days to the employee to revoke the agreement, with the agreement not being effective until after this revocation period.

Additionally, employers may void severance agreements for managers who have violated the company’s discrimination and/or harassment policies if the violation were a significant contributing factor to the manager’s separation from employment.

Anti-Harassment and Anti-Discrimination

The WFA will require employers to include a written anti-discrimination and anti-harassment policy. This policy must contain procedures and practices intended to reduce and prevent discrimination under Oregon’s protected categories. The policy must include the following:

  • A description of the process to complain about prohibited conduct, including suspected discrimination, harassment, or sexual assault;
  • Identify who in the organization the violations may be reports to, including a primary and secondary individual;
  • Notify employees that they have five years from the date of the prohibited conduct to pursue legal action;
  • State that an employer may not coerce or require an employee into a nondisclosure or nondisparagement agreement, as well as defining those terms;
  • Explain that an employee does retain their right to request those agreements with a seven-day grace period, if an employee should want to enter into them; and
  • Include a statement that advises employers and employees to document any incidents involving unlawful discrimination and sexual assault.

Note: Employers must give a copy of their anti-harassment and anti-discrimination policies to new employees, and to individuals who make a complaint about a prohibited discrimination or harassment.

Finally, the WFA increases (as mentioned above) the statute of limitations to up to five years for any prohibited behaviors listed above. Law firms operating in Oregon are recommending employers begin holding onto employment records to match this duration in order to provide any evidence they may have on hand, should cases come up years down the road.

The WFA legislation can be found online here.

The Oregon Bureau of Labor and Industries has provided a template policy for employers, which can be found here.

What do employers need to do?
Oregon employers should update their policies regarding signed agreements, anti-discrimination, and anti-harassment. Employers should also look into policies expanding how long they hold on to employment records, in order to protect against the five-year statute of limitations.

August 2020 Oregon HR Legal Updates

Oregon OSHA Releases Draft COVID-19 Temporary Standard

What happened?
On August 17, 2020, the Oregon Occupational Safety and Health Administration (Oregon OSHA), the state plan responsible for overseeing workplace safety and health in the state of Oregon, release a draft COVID-19 temporary standard.

What are the details?
The temporary standard begins by breaking the workforce down into three segments: (1) all workplaces; (2) workplaces with a “heightened risk” of exposure; and (3) workplaces with an “exceptional risk” of exposure. The standard then layers requirements on each segment with additional workplace safety requirements for employees at higher risk of exposure to COVID-19.  

“Workplaces at heightened risk” of exposure would include establishments where employees “perform a close-in tactile person-to-person work activity,” including “any job duty or work operation that requires an employee to be within six feet of another individual for longer than 15 minutes and that includes the direct touching of the individual with the employee’s hands or by the use of instruments or tools.” Examples include “tattooing, massage, hairdressers, barbers, beauticians, and make-up artists.”

“Workplaces at exceptional risk” of exposure would include those that “are involved in at least one of the following:

  • Direct patient care in a healthcare setting;
    • Aerosol-generating healthcare or postmortem procedures;
    • Emergency first responder activities;
    • Handling, packaging, cleaning, processing, or transporting of ‘contaminated materials’ as defined by this rule; or
    • Handling, packaging, cleaning, processing, or transporting human remains or human tissue specimens or laboratory cultures collected from an individual suspected or known to have COVID-19.”

A shorthand list of what topics are impacted in all workplaces is as follows:

  • Physical distancing or droplet buffer (face coverings)
    • Motor Vehicle Travel
    • Face Coverings
    • Sanitation
    • Physical Distancing Officer
    • Building operators
    • Posting requirements – new “COVID-19 Hazards Poster”
    • Employee training
    • Medical removal and mandatory two-week paid leave provision A more detailed description of each change can be found in this article.

Oregon has created a webpage with many resources related to these potential regulations.

What do employers need to do?
Employers should review the changes above and begin to think of policy changes that may need to be made should these rules be made official.

July 2020 Oregon HR Legal Updates

Summary of Laws with Upcoming Effective Dates

Nondisclosure Agreement
Effective October 1, 2020, employers are restricted from entering into nondisclosure or nondisparagement agreements at the time of hiring and during settlement and severance negotiations that prevent the employee from disclosing or discussing discrimination or sexual assault. However, such provisions are permitted when an aggrieved employee voluntarily requests to sign a nondisclosure, nondisparagement, or no-rehire agreement and will have seven days to revoke the agreement and/or if an employer makes a good faith determination that an employee has engaged in discriminatory conduct prohibited by Oregon law, including sexual assault.

Anti-Discrimination Policy
Effective October 1, 2020, employers are required to adopt an anti-discrimination policy, make it available to employees within the workplace, and provide a copy to new hires and to employees who make a complaint about prohibited discrimination or harassment. The policy must include:

  • A process for employees to report prohibited conduct
  • Identification of the person(s) responsible for receiving complaints, including an alternate person
  • The five-year statute of limitation for bringing a claim of discrimination or sexual assault
  • A statement that the employer may not require or coerce employees to sign a nondisclosure or nondisparagement agreement, including a description of the meaning of those terms
  • An explanation that an aggrieved employee may voluntarily request to sign a nondisclosure, nondisparagement, or no-rehire agreement and will have seven days to revoke the agreement
  • A statement advising employers and employees to document incidents of unlawful discrimination or sexual assault

The Oregon Bureau of Labor & Industries’ site contains a model policy for employers to use.

June 2020 Oregon HR Legal Updates

Summary of State Laws (Q1 & Q2 2020)

Scheduling Law
Effective July 1, 2020, covered employers must post the written work schedule at least 14 calendar days (previously seven calendar days) before the first day of the work schedule. Covered employers are retail, hospitality, and food services establishments with 500 or more employees worldwide, including those that are part of a chain.

Nondisclosure Agreement
Effective October 1, 2020, employers are restricted from entering into nondisclosure or nondisparagement agreements at the time of hiring and during settlement and severance negotiations that prevent the employee from disclosing or discussing discrimination or sexual assault. However, such provisions are permitted when an aggrieved employee voluntarily requests to sign a nondisclosure, nondisparagement, or no-rehire agreement and will have seven days to revoke the agreement and/or if an employer makes a good faith determination that an employee has engaged in discriminatory conduct prohibited by Oregon law, including sexual assault.

Anti-Discrimination Policy
Effective October 1, 2020, employers are required to adopt an anti-discrimination policy, make it available to employees within the workplace, and provide a copy to new hires and to employees who make a complaint about prohibited discrimination or harassment. The policy must include:

  • A process for employees to report prohibited conduct
  • Identification of the person(s) responsible for receiving complaints, including an alternate person
  • The five-year statute of limitation for bringing a claim of discrimination or sexual assault
  • A statement that the employer may not require or coerce employees to sign a nondisclosure or nondisparagement agreement, including a description of the meaning of those terms
  • An explanation that an aggrieved employee may voluntarily request to sign a nondisclosure, nondisparagement, or no-rehire agreement and will have seven days to revoke the agreement
  • A statement advising employers and employees to document incidents of unlawful discrimination or sexual assault

The Oregon Bureau of Labor and Industries’ site contains a model policy for employers to use.